Sunday, March 01, 2015

“For
42 years as a professor and dean at Hofstra Law, Monroe instilled in thousands
of students the responsibility of lawyers to zealously represent their clients
and also to stand for social justice.

Nationally
he was known as the father of modern legal ethics for his successful effort to
introduce the field into the mainstream of the legal academy. For this, he
received the American Bar Association’s highest award for professionalism, in
recognition of ‘a lifetime of original and influential scholarship in the field
of lawyers’ ethics,’ and his peers have called him ‘the conscience of our
profession.’”

[….]
Mr. Freedman became a nationally renowned expert on civil liberties while
serving as a law professor at George Washington University from 1958 to 1973
and later at Hofstra University in Hempstead, N.Y.

He
became even better known for his contributions to the emerging field of ethics,
in which he addressed the sometimes conflicting responsibilities of a lawyer
toward clients and toward the court.‘He
was a towering figure in the legal academy and especially in legal ethics,’
Georgetown University law professor Abbe Smith, who taught alongside Mr.
Freedman and published books with him, said in an interview. ‘He was
universally regarded as the founder of modern legal ethics as an academic
field.’

Mr.
Freedman wrote textbooks on the subject, and his landmark 1966 article, “The
Three Hardest Questions,” remains a mainstay of the study of legal ethics to
this day.The
article, which appeared in the Michigan
Law Review, outlined three central obligations that every defense lawyer is
bound to uphold: understanding all the facts of a case; preserving the
confidentiality of a client; and being candid and forthcoming to the court.

There
are times, however, when these legal principles can be in conflict, producing
what Mr. Freedman called a ‘trilemma.’ The trust between a lawyer and client,
he argued, is a fundamental cornerstone of the legal system and is essential to
discovering the truth. But what is the lawyer’s responsibility if a client says
he will not testify honestly on the witness stand?

Which
legal obligation is more important — confidentiality or candor? Mr. Freedman
suggested that a defense lawyer’s primary duty is to be his client’s best
advocate. The judicial system, after all, rests on the presumption that
defendants are innocent unless the prosecution can prove otherwise. A defense
attorney’s first responsibility, in other words, is to maintain the confidence
of his client’s private discussions, not to declare the client guilty.

Lawyers
have wrestled with such thorny questions for centuries, Smith said, but until
Mr. Freedman’s groundbreaking study, ‘no one sat down and thought about these
things and wrote them out.’ [….]

While
teaching at GWU’s law school in the early 1960s, Mr. Freedman chaired the
American Civil Liberties Union of the Nation’s Capital, advised civil rights
groups and was an early champion of women’s rights. He was the volunteer
counsel to the Mattachine Society, one of the country’s first gay-rights
organizations.

… Mr.
Freedman sometimes adopted other unpopular stances. He participated in antiwar
protests during the Vietnam War, raised questions about the fairness of federal
juries and even challenged civil rights leaders to expand their views of
liberty beyond the issue of race. ‘When a man fights for civil rights only when
he is directly involved,’ he said in a speech at Howard University in 1963,
‘his real concern is himself, and not the Constitution, the Bill of Rights or
his fellow man. Negro civil-rights leaders, like everyone else, should be civil
libertarians, regardless of race or color.’

In
1973, Mr. Freedman became the law school dean at Hofstra, only to resign four
years later in a dispute with the university’s leadership. He remained on the
faculty, however, and lectured widely throughout the country. He was the first
executive director of the U.S. Holocaust Memorial Council, from 1980 to 1982.”
[….] For the entire article, see here.

I was
fortunate to have occasionally corresponded with Monroe on a variety of topics.
At the Legal Ethics Forum we had a few spirited debates related to the
Israeli-Palestinian conflict, but that was perhaps the only issue on which we
did not see eye-to-eye. When Monroe was once scheduled to give a lecture abroad
he wrote to inquire what I knew about the differences between the adversary and
inquisitorial legal systems (not very much), so I sent him some articles I
thought he could tackle in a short span of time. But that was not
representative of our cyberspace relationship, as it was more often yours truly
on the learning end, especially with regard to our criminal justice system: the
legal right to counsel, the abuse of prosecutorial discretion and the
inordinate power of the American prosecutor generally, and, relatedly, the
“elusive quest for poor people’s justice” (the subtitle of Karen Houppert’s
2013 book, Chasing Gideon). And I was honored to be among those who routinely
received Monroe’s articles by post. Finally, I’m blessed to count among my law
books a copy of his text on lawyers’ ethics (co-authored with Abbe Smith), as
well as his co-edited work, How Can You
Represent Those People? (Palgrave Macmillan, 2013). Inside the latter,
Monroe penned a very kind and supportive note that is a fitting memorial token
of all the reasons I will sorely miss this remarkable human being.

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